Citation Nr: 0023392
Decision Date: 08/31/00 Archive Date: 09/05/00
DOCKET NO. 95-22 540 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Los
Angeles, California
THE ISSUE
Entitlement to service connection for floating fracture of
the right knee.
ATTORNEY FOR THE BOARD
John Z. Jones, Counsel
INTRODUCTION
This matter has come before the Board of Veterans' Appeals
(Board) on appeal from a February 1995 rating decision of the
Los Angeles, California, Department of Veterans Affairs (VA)
Regional Office (RO).
REMAND
The Board has reviewed the record and finds that additional
action is necessary prior to further appellate action. In
Stegall v. West, 11 Vet. App. 268 (1998), the United States
Court of Appeals for Veterans Claims (Court) held that "a
remand by this Court or the Board [of Veteran's Appeals
(Board)] confers on the veteran or other claimant, as a
matter of law, the right to compliance with the remand
orders." Id. at 271. In addition, the Court determined
that where "the remand orders of the Board or this Court are
not complied with, the Board itself errs in failing to insure
compliance." Id. However, the Court further held that
where such omission did not harm the veteran, the Board's
failure to return the case to the agency of original
jurisdiction could not be found to be prejudicial error. Id.
In the present case, the Board issued a remand in March 1997,
in which it requested, inter alia, that the RO contact the
Adjutant General of California in Sacramento, California, as
well as all other available sources, including the National
Personnel Records Center (NPRC), and request verification of
the specific dates of the appellant's California Army
National Guard service from May 1976 to September 1987, as
well as the type of service during each period of enlistment,
i.e., whether it was active duty, active duty for training or
inactive duty for training. A review of the record reveals
that the RO did request verification of service from NPRC in
June 1999, however, no response was received.
On the basis of the above and pursuant to 38 C.F.R. § 19.9,
the Board determines that further development of the evidence
is essential for a proper appellate decision and, therefore,
remands the matter to the RO for the following action:
The RO should again contact the NPRC and
request verification of the specific
dates of the appellant's California Army
National Guard service from May 1976 to
September 1987, as well as the type of
service during each period of enlistment,
i.e., whether it was active duty, active
duty for training or inactive duty for
training. Of particular importance is
the appellant's assignment on or about
July 22, 1986. All periods of active
duty for training or inactive duty for
training should be separately noted. The
RO should also request any service
medical records that might have been
retained concerning the appellant. Any
records obtained should be associated
with the claims folder. Failures to
respond or negative replies should be
noted in writing and also associated with
the claims folder. If this search still
proves unsuccessful, the RO should write
to the appellant in order to satisfy the
procedural requirements set forth by the
Court in Dixon v. Derwinski, 3 Vet.App.
261, 263-64 (1992) (mandates that when a
denial of a claim for benefits rests, in
part, on the government's inability to
produce records which were once in its
custody, an explanation is due the
veteran of how service records are
maintained, why any search undertaken
constituted a reasonably exhaustive
search, and why further efforts were not
justified).
2. Thereafter, the RO should review the
evidence and readjudicate the issue on
appeal.
If any benefit sought remains denied, the appellant should be
provided a supplemental statement of the case, which reflects
RO consideration of all additional evidence, and the
opportunity to respond. Thereafter, the case should be
returned to the Board for further appellate review. The
purpose of this REMAND is to obtain additional evidence and
ensure that the veteran is afforded all due process of law.
The Board intimates no opinion, either factual or legal, as
to the ultimate conclusion warranted in this case. No action
is required by the veteran until contacted by the RO.
The appellant has the right to submit additional evidence and
argument on the matter or matters the Board has remanded to
the regional office. Kutscherousky v. West, 12 Vet. App. 369
(1999).
This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board of Veterans' Appeals or by the United States Court of
Appeals for Veterans Claims for additional development or
other appropriate action must be handled in an expeditious
manner. See The Veterans' Benefits Improvements Act of 1994,
Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994),
38 U.S.C.A. § 5101 (West Supp. 2000) (Historical and
Statutory Notes). In addition, VBA's Adjudication Procedure
Manual, M21-1, Part IV, directs the ROs to provide
expeditious handling of all cases that have been remanded by
the Board and the Court. See M21-1, Part IV, paras. 8.44-
8.45 and 38.02-38.03.
ROBERT E. SULLIVAN
Member, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 1991 & Supp. 2000), only a
decision of the Board of Veterans' Appeals is appealable to
the United States Court of Appeals for Veterans Claims. This
remand is in the nature of a preliminary order and does not
constitute a decision of the Board on the merits of your
appeal. 38 C.F.R. § 20.1100(b) (1999).